Point of Law:
Issue relating to the contribution to pension fund under Section 36(1)(iv) of the Income Tax Act read with Rule 87 and 88 of the Income Tax Rules would not constitute a question of law and would be in the realm of factual issue.

JUDGMENT :

J.B.PARDIWALA, J.

1. As the issues raised in all the captioned tax appeals are the same and the parties are also the same, those were heard analogously and are being disposed of by this common judgment.

2. This batch of Tax Appeals under Section 260A of the Income Tax Act, 1961 (for short “the Act, 1961”) is at the instance of the Revenue and are directed against the order passed by the Income Tax Appellate Tribunal, ‘C’ Bench, Ahmedabad, dated 30th July 2020 in the ITA Nos. 361/Ahd/2014, 1662/Ahd/2014, 829/Ahd/2017, 803/Ahd/2017, 91/Ahd/2014, 330/Ahd/2014, 2283/Ahd/2014, 752/Ahd/2017, 753/Ahd/2017 and 2321/Ahd/2017 respectively for the Assessment Years 2009-2010 to 2014-2015.

3. The Revenue has proposed the following substantial questions of law for the consideration of this Court:

In Tax Appeal No. 157 of 2020

“(A) Whether on the facts and in the circumstances of the case, the Appellate Tribunal is justified in negating the findings of the CIT(A) as well as the Assessing Officer denying the benefits of Sections 11 and 12 of the Act by invoking proviso to Section 2(15) r.w. Section 13(8) of the Act?

(C) Whether on the facts and in the circumstances of the case, the Appellate Tribunal is justified in allowing the accumulation of 15% without appreciating the fact that once the provision of Section 2(15) r.w. Section 13(8) is applicable, the assessee forfeits all the exemptions under Sections 11 and 12 of the Act?

(D) Whether on the facts and in the circumstances of the case, the Appellate Tribunal is justified in deleting the deduction in the fixed assets of Rs.34,49,94,135/- without appreciating the fact that once the provision of Section 2(15) r.w. Section 13(8) is applicable, the assessee forfeits all the exemptions under Sections 11 and 12 of the Act? ”

In Tax Appeal No. 158 of 2020

“Whether, on the facts and in the circumstances of the case, the Hon’ble ITAT is justified in confirming the view of the Ld. CIT(A) in allowing the claim of contribution to pension fund, without appreciating that the assesse has not fulfilled the conditions laid down in section 36(1)(iv) w.r. to Rule 87 and 88 of the I.T. Rules, 1962? Whether, on the facts and in the circumstances of the case, the Hon’ble ITAT is right in allowing depreciation on assets, full cost of which was already allowed as application in earlier years. The ratio of decision of the Supreme Court in Rajasthan and Gujarati Charitable Foundation is not applicable in the present case as in that case exemption under section 11 and 12 was available to the assesse, whereas in the present case, the exemption under section 11 and 12 is not available to the assesse as per the stand of the department. Therefore an AOP cannot be granted benefit of both depreciation and capital expenditure in accordance with normal business provisions of the Act?

Whether, on the facts and in the circumstances of the case, the Hon’ble ITAT is right in allowing the claim of depreciation to the assessee by ignoring the fact that allowance of depreciation on the fixed assets, acquisition of which has been allowed as application of income in earlier years, will tantamount to double deduction particularly when benefit of section 11 & 12 has not been allowed and proviso to section 2(15) has been held to be applicable?”

In Tax Appeal No. 159 of 2020

“(A) Whether on the facts and in the circumstances of the case, the Appellate Tribunal is justified in negating the findings of the CIT(A) as well as the Assessing Officer denying the benefits of Sections 11 and 12 of the Act by invoking proviso to Section 2(15) r.w. Section 13(8) of the Act?

(B) Whether on the facts and in the circumstances of the case, the Appellate Tribunal is justified in allowing the assessee's appeal without appreciating that Revenue has filed Tax Appeal No.408 of 2012 before this Hon'ble Court against the decision of the Appellate Tribunal restoring registration under Section 12AA of the Act cancelled by the CIT?

(C) Whether on the facts and in t